Litigation in the age of the Internet

Top trial lawyer Reuben Guttman considers the use of emails and social media postings as evidence and how it is changing the nature, and possibly the outcome, of cases.

Twin Design

On the morning of 18 December 2015, the New York law firm of Kaye Scholer still had not taken off its website the biography of partner Evan Greebel, who, along with Turing Pharmaceutical CEO Martin Shkreli, had been indicted for securities fraud less than 24 hours earlier by the US Attorney for the Southern District of New York. By sundown, the biography was gone. Those wanting to learn about Mr Greebel could still view his LinkedIn page, which showed one ‘endorsement’ for his skill in private equity. That endorsement came from none other than Martin Shkreli.

For his part, Mr Shkreli's life is more of an open book, with posts on LinkedIn, Facebook and Twitter and lengthy livestreams on YouTube. His LinkedIn page shows endorsements from approximately 100 individuals, whose detailed biographies also appear on the site. His tweets and retweets are revealing. Re-tweeting Bloomberg Press on 16 December, Mr Shkreli posted: ‘Wu-Tang loving Turing CEO Martin Shkreli is really good at short selling.’ Re-tweeting XXL Magazine on the same day, he wrote: ‘Martin Shkreli, who paid $2 million for the secret Wu-Tang album, says he'll bail Bobby Shmurda out of jail.’ Now there's an irony!

The New York office of the Federal Bureau of Investigation also cannot resist social media; it too has a Twitter account. On 17 December, it posted: ‘BREAKING: no seizure warrant at the arrest of Martin Shkreli today, which means we didn't seize the Wu-Tang Clan album.’

Not hip enough to have heard of Wu-Tang? No problem, Wikipedia can tell you that it the Clan is an American hip hop band from New York. By the way, the band also has a Twitter account. And Bobby Shmurda? He’s a rapper from Brooklyn whose biography is on Wikipedia and who, like Shkreli, tweets whatever comes to mind.

With about one hour of internet surfing, an FBI agent can come up with a list of witnesses to interview, gain insights into the mind-set of criminal targets and even get a rough sense of who is communicating with whom. In the age of the Internet, the lives of witnesses and targets are to a certain extent an open book.

Federal agents undoubtedly looked at this very public information when crafting document subpoenas and conducting witness interviews, which allow penetration well below the surface of public banter. And what do the document subpoenas turn up? Thumb drives loaded with emails!

Undoubtedly, it is the communications memorialised in emails that allowed the Justice Department to craft a detailed indictment alleging the who, what, when, where, and how of the criminal conduct. In a federal district court in the US, emails transmitted by a ‘party opponent’ (in this case the defendant) can be admitted into evidence as long as they are authentic, which means that they are what the purport to be: true and correct copies of the emails. In US v. Shkreli, it is possible that federal prosecutors can make the case on the documents alone. Electronic communication and social media memorialise events in real time and statements made in these communications can be more insightful and convincing to a jury than oral testimony recollecting prior events. Times have changed since the days when handwritten drafts were given to a cleric to type. That process took spontaneity out of the mix. These days, trial lawyers comb through electronic databases reviewing emails that have not been filtered through drafting and editing. It is an age where we say what is on our mind, press a button and transmit information with typos, wit, and sometimes wisdom, but always with stream of consciousness. The ability to use emails as evidence is perhaps only second to playing recordings of verbal or videotaped exchanges. For the attorneys and investigators in US v. Shkreli, it is just another day litigating in the age of the Internet.